Wednesday, February 2, 2011
Like the same-sex marriage law floated in California, civil union statutes, once passed, usually have a rocky road. In Maine like in California, for example, the same sex union become law via referendum, only to be subsequently invalidated by a court.
Invariably, there is a political price attached to this legislation. No surprise, given such a polarizing issue that scholars have long-heralded as the next civil rights struggle in the USA.
Recently in Iowa, Lambda Legal sponsored litigation on behalf of gay couples, asserting that denying a marriage license on a same-sex basis violated the liberty and equal protection interests of the state constitution. In April 2009, the Iowa Supreme Court ruled in favor of the same-sex couples; three of these justices were voted-off the court in the election last fall.
A civil union is an intermediate legislative step toward the institutionalization of same-sex marriage. In addition to the 6 states recognizing civil unions, another four states endorse "domestic partnerships", which provide broad rights for same-sex partners, but do not formalize the union. Many gay couples do not avail themselves of such status, rejecting the compromise.
On the other hand, same-sex legislation has been rejected in more than 30 states. Some states, like Michigan, have amended their constitution to expressly limit the scope of marriage to the union of a man and woman.
Same-sex couples have long-sought benefits and rights enjoyed by conventional married couples such as health insurance coverage, tax breaks, even hospital visitation. Like they did in Iowa, gay advocates often have the means to "put their money where their mouth is" in the form of expert lobby campaigns.
In the nearly two decades since the issue was first litigated in Hawaii, the same-sex movement has taken on religious as well as political tones. Nationally, the issue remains far too close to call.
As our common law tapestry continues to evolve, only time will tell whether this issue will achieve civil rights recognition and eventual institutionalization.
Tuesday, February 1, 2011
In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother. The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.
Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs. Father, on the other hand, petitioned the family court for an order that his daughter attend public school. The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.
Father knows best; for now.
This case has been acquiring headlines while burning through the NH appellate courts. The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.
Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents. Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".
For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style. His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".
The dispute is certainly philosophical, if not constitutional. Stay tuned per usual as we await the outcome of the case and report back to you.