The study also examines the rate of divorce for same-sex couples ,a topic that many of us find especially fascinating. Most interestingly, they also looked at the numbers of couples that are formally ending their relationships, in comparison to the divorce rates for straight couples. The full text of the study can be found at the website of the Williams Institute:

It is worth reading the entire 40 page study, with all their statistics, but here is a thumbnail summary of what these researchers concluded:

1. Approximately 140,000 same-sex couples have either state-registered or married. In some instances states initially allowed only civil union or domestic partnership and offer marriage (such as Connecticut), whereas other jurisdictions only have offered marriage (Massachusetts). They then compared those figures with the reported numbers of same-sex couples (based upon Census data) and concluded that about one-fifth of the acknowledged same-sex couples are in a legally recognized relationship.

2. They compared the number of reported divorces in each jurisdiction per year, and it appears that about 1% of the total number of married or state-registered same-sex couples get divorced each year. By comparison, when compared to the total number of married couples in each state, about 2% of the married straight couples. These statistics are sometimes confusing, since most folks think that half of the marriages end in divorce. But that is over a 25 year time period — only about 1% or 2% of the married couples get divorced in any particular year!

3. Same-sex couples seem more likely to legally formalize their relationship when marriage is an option, as opposed to a marriage-equivalent domestic partnership or civil union registration. This is true when one looks at states that “upgraded” their options to include marriage, as well as comparing marriage states to those which only offer domestic partnership or marriage.

4. Nearly two-thirds of registered or married same-sex couples are lesbians, and only about a third are gay men.

5. A smaller percentage of cohabiting same-sex couples register or marry in comparison to cohabiting straight couples, but if current trends continue the marriage/registration rates will be similar in about ten years.

What do these statistics tells us about what is happening with gay marriage and divorce?

First, the better recognized and more respected institution of marriage is much more attractive to same-sex couples than a legally equivalent registration, such as civil union or domestic partners. This finding is consistent with other sociological studies that have shown that same-sex couples are more interested in the social symbolism and community acceptance that is bestowed by marriage, as opposed to the “dry” technical benefits of a domestic partnership or civil union.

In other words, getting married is more about the emotional symbolism and the societal acceptance, than about a particular state-issued benefit. This should not surprise us — increasingly, gay and lesbian folks seem to be not all that different than straight couples when it comes to love and romance. We lawyers tend to see marriage rights in terms of the legal benefits it confers, but that is not what motivates most couples to get hitched.

Second, marriage is more appealing to women than to men. There are some demographic reasons for this pattern – women are more likely to be raising children, they are more likely to have one partner not employed (and thus needing health benefits), and they tend to have lower incomes than their male counterparts and thus concerned about the legal benefits of marriage. But it is also about our culture: despite the feminist arguments to the contrary, women tend to be more marriage-focused, be they straight or lesbian, and remember, lesbian women are still women. Interestingly, some studies have shown that committed lesbian relationships don’t last longer than gay men’s relationships. It will be fascinating to see whether the married lesbians will stick together longer than the unmarried ones.

Third, what does the lower divorce rate for same-sex couples really mean? My hunch is that it is not the case that gay men or lesbians are more committed to sticking with their marriages than straight folks. Instead, I think that this finding is an indirect result of who is getting married in these early years of same-sex marriage. There’s no statistical data out yet on this particular dynamic, but in my experience as a lawyer working with same-sex couples most of the partners getting married tend to be those who have already been together for some time. They already have weathered the stormy middle years of coupledom, and they are consciously committed to being a family. For that reason we should not be surprised that they are not rushing to get divorced so quickly. Of course, there are a fair number of such couples whose relationships don’t last, but on the whole it’s a rather select group. Think about it – the couples with shakier relationships are not likely to travel across state lines to get married – and there certainly aren’t any “shotgun” marriages in the gay community!

In most of these cases the petitioners were not asking a judge to grant them any property or alimony based upon their marriage, since they’ve already settled those issues, or maybe the other partner wasn’t even showing up in court to contest the divorce. Instead, all they wanted was an order of dissolution. Some lawyers have proposed that the couple could simply sign a private settlement agreement and distribute their assets, but this could create problems down the road. Being legally married could come back to haunt them if either of them relocated back to a recognition state (or if their own state started recognizing same-sex marriages), or if either of them died before they got a divorce.

Not being able to get divorced also means you can’t get remarried, which can be a real problem if either partner needs health insurance, wants to have children, or simply wants to enjoy the emotional and spiritual dimensions of marriage with their new lover. Being married to someone you don’t live with can create problems with lenders, title companies, and insurance companies as well.

The legal origin of these problems stems from what is referred to as the “domicile” rule, which means couples ordinarily can only get divorced in the state in which they reside at the time of their break-up, regardless of where they lived when they got married. The purpose of this rule, which goes back more than a century, is to prevent nasty husbands (or wives) from evading the divorce rules of the state they live in, by simply hopping across the state line to get a divorce in another state. For example, if a husband in New York didn’t like the property rules imposed on him by the New York court, it would be unfair to his wife if he could simply drive a few miles away to a more lenient state and file for divorce there.

Some folks think these rules don’t make sense any more, in our mobile society, but for straight couples the rules don’t create any real problems. Sure, every once in a while it is unclear where the couple really lives, or where their primary residence is, and that can lead to disputes when the different states have different divorce rules. But the real problems are for the gay couples in non-recognition states. Few of us can afford to move to another state just to get a divorce – especially because funds are usually even tighter during a divorce. Some lawyers have even questioned whether the out-of-state divorce would be valid in the non-recognition state,if there was a problem with an ex-spouse or a creditor.

Fortunately, the California legislature has just passed a bill (which was signed into law on October 9th by Governor Jerry Brown) that resolves this problem, at least for those who got married here in 2008, before Proposition 8 was passed. It will also help those who may in the future get married in California, if and when Proposition 8 (which bans same-sex marriages) is repealed (by the voters) or ruled to be unconstitutional (by the federal courts). The bill is titled SB (Senate Bill) 651, and the full text can be found at: http://leginfo.ca.gov/pub/11-12/bill/sen/sb_0651-0700/sb_651_bill_20111009_chaptered.html

The new law will go into effect in January 2012. It provides that if a couple got married in California but live in a state that won’t grant them a divorce (which is presumed if the state doesn’t recognize their marriage), the California court will have jurisdiction to grant them a dissolution. The divorce case will be filed in the county where the couple got married, and the dissolution is supposed to be adjudicated “in accordance with California law.”

There’s are a few more features of the new law which aren’t about divorce, but are equally helpful. Currently a domestic partnership registration requires that the couple live together, whereas marriage doesn’t have that same requirement. This can be a serious problem for those in commuting relationships, and the new law removes this discriminatory restriction. The new law also allows for confidential domestic partnership registration, another “benefit” of marriage that was not included in prior versions of the domestic partnership registration system.

There is a lot that remains unresolved in this new legislation, especially just what it means to adjudicate a divorce in accordance with California law if the spouses are not residents. But for those who have been able to reach their own private settlement agreement, this will enable them at least to obtain a formal dissolution. And, while there is also some uncertainty on the details, chances are the dissolution will be honored in other states, even non-recognition states. This will allow the ex-spouses to enter into contracts as a formerly married person, and to be treated once again as an unmarried person.

It’s a long ways from full marriage recognition in every state, but at least the couples that married in California will now be free to get divorced, wherever they live!

LGBT Elder Law: as many of us (including me) age, our legal needs also evolve. It’s not just a matter of having valid wills and powers of attorney, it also means having access to fair treatment from a medical provider, access to hospitals, and fair treatment in nursing homes. The nursing home aspect is perhaps the most challenging, as it involves subtle forms of discrimination, isolation and fear by straight residents, and difficult behaviors resulting from dementia and disability.

Tax & Estate Law: While the past few years have focused on the challenges of drafting estate plans in light of the Defense of Marriage Act (and the lack of federal estate tax marital exemption), the new questions are dealing with planning in anticipation of the repeal or invalidation of DOMA — what a welcome shift of concerns! There is great confidence that DOMA will die, either through court action or congressional votes, some time in the next two or three years. When that happens, high net worth same-sex couples will be able to take advantage of the unlimited marital exemption from estate tax. There will still be concerns about who is a lawful child, what to do with assets acquired earlier, and how to deal with state laws for those living in non-recognition states — so don’t worry, there will still be hard work to do!

Surrogacy and Parentage: the painful struggles for parentage recognition for non-bio or non-legal parents continue, and one of the most powerful sessions at the Institute featured a panel of lesbian and gay parents who had fought for their rights, as LGBT or non-bio parents. While good law is being made in many jurisdictions, there are still many setbacks (think North Carolina) and great concern for those who have not become legal parents. On the surrogacy front, the law is improving, but the ethical challenges remain serious. Recent prosecutions of attorneys arranging questionable surrogacy contracts and the rise of “out-sourcing” of births to India raise difficult questions for everyone involved.

Immigration: there are definitely some improvements here, with the non-enforcement of deportation orders under the administration’s newly announced policy. But DOMA still creates a serious impediment for partners of married lesbians and gay men, and the “permanent partners” bill is not likely to succeed in Congress any time soon.

But there is a subtler way in which this is an important turning point. New York City is the nation’s center of commerce, journalism, and wealth. Changing the legal rules in New York means that stock brokerages, national corporations, newspapers and the like will all have to change their practices to recognize same-sex couples who have gotten married. Forms will change, personnel rules will change, and the treatment of the New York employees and residents will change. This will pave the way for easier changes nationally, and most likely will open up the minds of a powerful force of influential decision-makers – especially in corporate America. Moreover, the writers and publishers who work in New York will be witnessing the change, and this will lead to positive stories nationally.

Congratulations to the hard working political activists who made this change possible!

One minor word of caution: New York’s rules of marriage are particular onerous, especially when it comes to getting divorced. So while we all must celebrate this important new right to marry, the decision to actually get married should not be taken lightly. Please, don’t let your major contribution to the New York economy be the fees you have to pay to lawyers to end your same-sex marriage – at least not anytime soon!

In simple terms the judges ruled that DOMA violates the constitutional equal protection clause. They said that there is no rational basis for the law, focusing on the obvious truth that allowing a couple to file a joint bankruptcy petition could not have any effect on anyone else’s marriage. They focused on the structure of the bankruptcy process, and concluded that none of the reasons cited by Congress in passing DOMA made any sense in the context of the debtor protection laws.

While the practical impact of this ruling may be slight – and the financial implications are rather minor – the symbolic importance is enormous. Bankruptcy judges are not considered flaming radicals or “activist” judges, and the mundane world of creditor-debtor relations is not usually seen as a hotbed of political controversy. But this ruling reveals the many practical consequences of a law that has no legal merit – and hopefully will help pave the way to its demise, either judicially or legislatively.

At the same time, there is no civil marriage in Israel – only religious marriage. This concept sounds archaic to most of us, but there’s a long history behind this doctrine. Indeed, it predates the founding of the State of Israel. Under Ottoman law each religious group maintained control over matters of “personal status,” which includes marriage and divorce, and the system was preserved as part of the religious/secular arrangements of Israeli law. Interfaith marriage is not allowed, and so many couples (even including some Jewish couples where one spouse is not recognized as Jewish by the rabbinate) must travel to Cyprus to marry.

Because of these limitations the secular government has for a long time recognized and granted most marital rights to “de facto spouses,” similar to common law marriage in our country. There also is a statutory mechanism for recognizing foreign marriages, and even a division of the civil court to enable those with foreign marriages to get divorced. Ironically, the comprehensiveness of the non-marital recognition system has thus paved the way for granting benefits to same-sex couples, as they also cannot marry under religious law.

The system is not without its problems, however. While same-sex couples who have married overseas can “register” as married, each government agency has its own rules and there is no uniformity to the recognition. And, at this point it is not clear if any court – religious or civil – will grant a divorce to a married same-sex couple that has broken up. Local courts have treated some gay couples as if they are married, and others have not, without any uniform rules. Adopting children is not simple, and surrogacy is not allowed in Israel, forcing gay male couples to turn to India or the United States to have a child by surrogacy – with resulting expense and complications for the legalization of the child’s entry into Israel. And, while most secular gay Israelis seem quite comfortable staying out of a religious marriage, the social discrimination is nonetheless very real.

I will be teaching a course in Israel next year on the U.S. law for same-sex couples, and I’ll be learning more about the Israeli situation while I’m there. The intersection of civil rights, marriage rights, and recognition of alternative families is a lively topic in Israeli society – and it offers many intriguing contrasts and comparisons to our own legal struggles and achievements.

While most observers and commentators find these responses to be a display of an enobling motivation and a satisfying validation of the couples’ emotional needs and commitments, to me it is also a cause for concern, in two respects.

First, I worry a bit about couples that say they need this sort of outside ratification for their relationship, as it suggests a lack of internal solidity and strength. I am not sure if I would call these expressions of need as internalized homophobia, since it probably is something that many straight folks feel as well. But I sense that the social marginalization of gay people and the lack of respect for the relationship by friends and family has created a diminished sense of worthiness for many of us, in ways that really are different for straight couples. I get that, and I’m very sympathetic to those emotions. But I wonder whether marriage is really the best solution to this very real problem. Approach the marriage event (with its combination of religious and legal sanctification, community notification, and what will hopefully be a fun social event) in this manner reinforces the notion that worthiness is bestowed by outside support, rather than from an inner strength and commitment. My sense is that most straight couples already feel that they have a bounty of social support, and to them the marriage is the expression of the support they already have – not an event that is meant to create or bestow broader social or community support.

Second, I worry that couples are turning to marriage without really understanding how getting married will change their relationship, possibly emotionally but certainly legally. It’s my perception that an increasing number of straight couples have felt free in recent years to decide whether or not to get married. My sense is that they approach that decision with an open mind and some degree of knowledge of what it means to get married, and are not motivated by a lack of sense of self-worth. I want lesbian and gay couples to have the same freedom, and the same knowledge when they make their choices.

I truly appreciate the research that is finally being done on the motivations and decisions of same-sex couples, and Richman’s work is valuable and meaningful. I will be even more interested in seeing the results of studies that evaluate how getting married has affected these couples over the long term. I wonder, does marriage improve the quality of their relationship and strengthen their bonds, and does it lead to longer-lasting and more satisfying relationships? That will be the ultimate test of the value of this monumental social change movement to legalize same-sex relationships!

Over the last few years Obama has tried to stay “on the fence,” saying he opposed DOMA politically but would continue to defend it legally, until Congress chose to repeal it. Now, he is jumping off the fence, on to the right side of the debate. He is also going out on a fairly dramatic political limb, by instructing the Justice Department to act according to these principles.

There are two dimensions to this policy shift. On the technical legal side, the government is withdrawing its appeal of several trial court decisions that ruled that DOMA was unconstitutional. Individual members of Congress probably will hire private lawyers to defend the appeals, but with the President weighing in on the side of the opponents and the government no longer officially defending the law, there is a very high probability that the appeals will be defeated. It may take a year or two for this drama to play out, but there is a far greater likelihood now that DOMA will be judicially overturned.

But perhaps of great importance is the change in the political and social policy atmosphere. For the President to take this stand is to say to the political mainstream, the times they are a-changing. And we are already seeing how the tide of change is flowing. Hawaii’s governor has signed their domestic partnership law, which will extend marriage benefits to same-sex couples as of January of next year. The Maryland Senate passed a marriage equality bill, and there is a decent chance the other house of government will pass it — and the governor has said he would sign it. And, just this week, the influential Senator Dianne Feinstein from California has introduced legislation to repeal DOMA, parallel to similar legislation launched in the House of Representatives. As with the repeal of “don’t ask don’t tell,” a strong sense that the courts are going to impose this change may turn the tide in Congress in advance of such a ruling.

It will still be several years before the legal ramifications are sorted out, especially as the repeal of federal non-recognition will still leave couples in the dozens of non-recognition states in legal limbo. But the light at the end of this long tunnel has grown significantly brighter this week.

It’s especially significant in light of the 15 years of marriage debates in Hawaii. Hawaii was the first state to bring a challenge to the ban on same-sex marriage; interestingly, it was brought by a couple represented by a straight lawyer from the local ACLU, because the established gay legal community had mixed feelings about fighting for marriage. The initial court victories were very significant, but as had been feared, they triggered a terrible backlash. A voter approved initiative prevented the courts from allowing lesbian and gay couples to marry, and even worse, it spawned a fear of gay marriage that led to the passage of the federal Defense of Marriage Act.

The legacy of that fight has lingered for a long time, and so this latest success is a sweet victory for Hawaiians. It is important that we recognize the practical value of extending marriage benefits to same-sex couples in Hawaii, and also acknowledge the meaningful political victory that this law represents.

We now have five states and the District of Columbia that allow full legal marriage, and seven states that have marriage-equivalent registration. And, there are three states that generally recognize the partnerships and marriages entered into in these other states. That makes 16 states where there is some form of formal recognition of same-sex marital rights.

And that is good news!

Because this is primarily a question of state law, the federal appeals court had two options. They could have tried to answer the question on their own, or they could refer it to the State Supreme Court for an answer, which is what they did. Interestingly, the State court could have refused to answer, punting the question back to the federal court. But as expected, the State court agreed to answer the standing question.

The court has asked the parties to submit supplemental briefs on the issue by May, and they will hold oral argument in September. That means they will likely issue a decision some time late in the year, probably in December.

If the State court rules that the proponents do not have standing, the federal appeal will be dismissed and the trial court decision will stand. This probably means that the ban on same-sex marriage will be lifted – though there is some uncertainty as to the procedures in this sort of situation. On the other hand, if the State court rules that the proponents do have standing to file an appeal, then the federal appeals court will have to rule on the substance of the appeal, i.e. whether Proposition 8 is constitutionally valid. This could take as long as another year, especially because the three-judge panel’s decision could be reviewed by a larger number of appellate judges.

Many folks have wondered what would happen if this case ever got to the United States Supreme Court. Given how long this process is taking and how many more steps there are in this process, chances are Proposition 8 will be back on the ballot in November 2012, before any final decision is reached. If the proposition is reversed by the voters in 2012 then we will never have to worry about how the Supreme Court would decide.