Fault and Fidelity in Same-Sex Marriages

Last night’s episode of Brothers & Sisters featured a difficult conversation between the gay spouses — starting with a discussion of whether to accept a foster child into their family (after their surrogacy efforts failed), and then leading into a disclosure by one of them of a breach of their monogamy commitment. The preview of next week’s show indicates that the admitted infidelity may will lead to an unraveling of their marriage.

Discussions of who is at fault for the failure to become parents and the consequences of an admitted tryst are fairly new to gay male relationships. Interestingly, a recent study at UCSF indicated that 50% of male couples have “negotiated non-monogamy,” which means not only that the non-monogamy is agreed to, but the limits and terms of such activities are also specifically negotiated. While some straight observers may be offended at this percentage, to many others a 50% non-monogamy rate would indicate a dramatic INCREASE in the percentage of monogamous couples! It’s likely that for many lesbian couples the monogamy percentages are higher, and the growing number of children in lesbian households and the higher frequency of marriage or partnership registration (3 to 1 relative to gay men, for example, in California) is likely to result in a greater number of complaints about an admitted infidelity.

Apart from what the sociologists or therapists might have to say, as a lawyer there are two questions that immediately arise in this context.

First, what does it mean to have an agreement for monogamy? Is it a true “contract” or merely an unstated or vaguely voiced expectation? And, since there is no god of contracts that comes down from the sky to preclude a breach of any contract, what does it really mean to enter into such a contract? Is it meant to be a limitation on future behavior, or rather, is it merely a statement of the state-of-mind of the partners at the time they express those intentions? A commitment can be an honest statement of intentions, without rising to the level of a contract that could be enforced, with penalties for non-compliance.

And second, to the extent there really was a contractual agreement, what is the appropriate remedy for its breach? Except in highly unusual settings courts will not enforce such contracts. Unlike the 19th century rules there is no legal obligation of sexual fidelity in a marriage in most states nowadays, and very few states even take such allegations into account in a distribution of assets or property (the marital rules generally are “no fault” rules). Thus, other than a strong sense of outrage and a fervent desire to punish the offending party, there isn’t much of a “remedy” available for breaches of this contract.

And so, one wonders, of what benefit is the invocation of a contractual framework?

Similar issues arise with the notion of fault in a break-up. In almost every dissolution where fault is alleged, the identified “faulter” will have a passionate defense, usually blaming the accuser for some conduct in the past that resulted in the alleged fault. Indeed, most affairs are related, at least indirectly, to underlying problems in the relationship that are being worked out through an affair. And, unlike the 19th century rules (where the one at fault could be punished financially or be restricted as to when he could remarry), marital rules these days disregard any fault factor in just about every state.

To my mind, the contractual framework is not the right one to use. Rather, one should focus on the most important values in a lasting relationship: honesty, commitment, loyalty, kindness, and enduring affection. An affair that is undertaken in secret is likely to be at odds with those values, regardless of whether or not an agreement was ever made — whereas an open discussion of extra-marital sexual desires (or involvements) can, and should, be handled in a manner that honors these important relationship values. Ideally the discussion should happen before the offending action occurs, and most importantly, the discussions must allow the other partner an equal level of participation in the resolution of the conflicts — before any affair has commenced. Only then can there be a truly “negotiated” agreement about outside sexual activities.

Monogamy is not legally required for any marriage, same-sex or different-sex, and fault is not relevant to the marital law rules — and so the issue of monogamy should not be framed in legalistic terms. It’s more a matter of loyalty, affection, dedication and honesty — and those are the values that should guide these challenging questions.

State Courts Address Complex Gay Divorce Issues

In New York and in Texas, state courts have recently issued controversial rulings arising in gay divorces — one positive, and the other decidedly negative. In the Texas Court of Appeals decision, the court ruled that a couple that had married in Massachusetts and then moved to Texas could not get a divorce in Texas, on the grounds that granting a divorce would, ironically, “give legal effect” to the marriage. In other words, if they don’t think the marriage is valid, they can’t end it! One would think that the hostile court would love to help this couple break up, but no, that would be too dignified. The court overturned the trial court decision, which had granted the divorce and even had gone so far as to rule the Texas marriage ban as unconstitutional.

Unless the Texas Supreme Court reverses the appellate court’s decision, couples in Texas that married elsewhere will have to move to a marriage recognition state (or at least one of them will have to do so) in order to end their marriage. Hopefully the couple can resolve any outstanding financial disputes, as that will make the dissolution process go more smoothly.

Unfortunately Texas is not alone in ruling this way. For this reason, we strongly encourage couples living in non-recognition state to postpone getting married, but instead, take care of their financial and estate planning tasks as an unmarried couple. Not being able to get a divorce can be terribly burdensome on a couple if things go awry, and will prevent either partner from re-marrying until the divorce can be processed.

In New York, by contrast, an enlightened trial court upheld the validity of a paternity judgment from California in a dispute between two men whose relationship had ended, finding that both men were legal parents. The court validated the parentage status of a gay man who had arranged for a surrogate to carry the couple’s child in California, and the man was deemed to be a legal parent of the child — even though the surrogate parenting contract was considered to be against the public policy of the state of New York. What counted here is that the judgment in California was valid — and thus would be honored in New York state.

Such Sad Deaths — and A Legal Perspective

There are two legal dimensions to the recent tragic suicides of several young gay men that warrant further thought — one having to do with some of the underlying causes and the other having to do with the appropriate treatment of those who contributed to those deaths.

In perhaps surprising ways, the two legal issues are related.

As for causation, one the most frequently recurring messages that young victims of anti-gay bullying talk about is how they feel that there is no place for them in the social world they inhabit. This is a broad social issue that needs to be remedied, though conversation, counseling, and community activism. But legal change is part of that process, as one of the goals of anti-bias legislation is to encourage social change and to counter the harmful myths, by fostering an atmosphere of hope, support and legitimacy with regard to LGBT young people. In many ways, working to pass anti-bias legislation is a powerful way of demonstrating these gay-positive values, by sending a clear and public signal to young gays and lesbians that they are valued, honored, and respectable members of society. By the same token, those who oppose those laws, or who use their political podiums to condemn same-sex partnerships or sexual freedom for LGBT folks, send a hateful message that inevitably finds its way into the minds and hearts of vulnerable people, with often destructive results. Gay rights legislation isn’t just about establishing legal rules — it is also a way of publicly demonstrating positive social values.

In a similar way, the criminal process should hold people accountable for acting in ways that lead directly to the suffering of others, and as we have seen too often this month, in some instances leading to the suicides of those who are the victims of bullying, teasing, and cruelty. It is impossible to know precisely what would lead someone with such a stellar future (as the young student at Rutgers had) to such a tragic ending. Undeniably, he was vulnerable in ways that those who webcasted him surely did not realize. But his vulnerability does not excuse the wrongful actions by those who “outed” him as they did, and their lack of awareness as to the likely consequences of their actions should not entirely absolve them of legal liability. The legal system should send a strong message that such reckless actions — whether or not motivate by anti-gay feelings or mere insensitivity to the likely consequences of their actions — must be appropriately punished.

Matthew Shepard’s tragic death inspired many activists to work together to change the lives of lesbians and gay men across this country. We can only hope that Tyler’s death in New York can similarly be an inspiration to positive social action on behalf of the legal rights of lesbians, gay men and transgender people.