Equally Wed, and The Kids Are All Right

Don’t get me wrong — I love a party, and I love a good film. And so, I’ve been pleased to see the emerging popularization of same-sex weddings and parentage, best exemplified by the new on-line magazine EquallyWed and the engaging new film, The Kids Are All Right. Both of these deservedly-celebrated popular endeavors deal openly with same-sex love and romance and child-rearing, in positive and culturally nuanced ways. I’m thrilled that they are out there.

At the same time, I’m a bit troubled by the lack of attention paid to the legal aspects of these important new developments. It’s not about whether or not folks buy my book, really — it’s whether gay couples are willing to spend even a brief amount of time and a modicum of funds dealing with the legal aspects of what they are taking on. As for the weddings, I’m concerned about the number of couples who spend great amounts of time and money on their outfits, the invitations and the caterer, without devoting even an afternoon to discussing their finances, their debt liabilities, and their home ownership plans — let alone sitting down to scope out a pre-nuptial agreement. I want these relationships to last, and to not end up as nasty divorces, and it concerns me that there isn’t a bit more emphasis on the legal and practical aspects of the partnership. It’s brutally painful when part of the divorce dispute is who is going to pay the unpaid wedding bills! For most couples a few thoughtful hours and some variety of legal documentation can avoid enormous heartache — and equally big legal bills in the event of a break-up.

As for parentage, the positive apect of the new film is that the couple appears to have done things right — most likely they are both legal parents, and they’ve used an anonymous donor so he doesn’t have legal rights over the kids — though he certainly exercises a powerful emotional influence. But all too many couples aren’t bothering to take care of these tasks in a thoughtful way, leading to difficulties that are incredibly hard to resolve. This is especially so for couples that live in states that don’t allow the non-birth parent to do a second-parent adoption, or where the ramifications of a parentage presumption statute for same-sex couples is unclear. It isn’t always possible to resolve the legal complications, but it’s crucial that every couple make the effort to learn about their legal situation and resolve the problems as much as is possible.

Federal Court Rules DOMA Unconstitutional

Good news from Massachusetts! The Federal District Court has ruled in two related lawsuits that the provision of the Federal Defense of Marriage Act that precludes federal recognition of valid state same-sex marriages is unconstitutional. One lawsuit was brought by the state of Massachusetts, involving the state’s classifications of couples for benefits purposes, and the other was brought by couples who wanted to obtain some of the federal benefits conferred on married couples. It is most likely that the administration will appeal the decision (even though Obama says he wants DOMA to be repealed) and so the case will make its way through the circuit court of appeals and then, quite possibly, the United State Supreme Court.

Meanwhile, the federal rules will almost certainly remain unchanged while the case is being appealed. And so, it will be several years before we see any real change here. And, it is not at all certain that the trial court’s decision will be upheld on appeal. But still, the decision is of great importance. It shows that at least one judge has concluded that DOMA is unconstitutional — as an improper interference by the federal government into a realm (marriage law) that has traditionally been left to the states. And, it gives greater legal weight to the political efforts to repeal DOMA in Congress. In fact, my hunch is that Congress will repeal DOMA before a final court decision is ever issued — so we may never know what the Supreme Court would have to say about this issue.