One image of attorneys is that they are a cut-throat bunch, caring little about their clients and less about their competitors. In fact, a great deal of sharing and mentoring goes on in the legal profession, even among competitors -- at least in the family law arena.
The Los Angeles County Bar Association, Family Law Section, has a listserve on which all members may post questions. Surprisingly, most questions are answered rather quickly, and there is often an ongoing discussion for a few hours, or even days, on subjects that are controversial.
By regularly monitoring the discussions, and occasionally pitching in, an attorney keeps his or her skills sharp, gets an insight into unusual or difficult situations that arise, and participates in a community of professionals. This helps to raise the standards within the legal profession and allows attorneys to receive regular feedback on their practices and procedures.
Since participation is entirely voluntary (and one must actually pay to be a member of the Los Angeles County Bar and pay more to join the family law section), the listserve is another area of life, and the law, that attorneys can be proud of.
Sunday, June 22, 2008
Sunday, May 25, 2008
Will Voters Provoke Supreme Court to Eliminate Marriage?
The California Supreme Court has held that the California Constitution is violated when the State refuses to recognize "same gender" marriages. Actually, the Court got a little confused, since it talks about discrimination based on "sexual preference." As anyone who has been paying attention should know, there are plenty of "gay" men and women who are ALREADY married - to someone of the opposite gender.
Whenever I write a brief, I know my client is right whenever I can write a very short brief, right to the point. The Supreme Court rambled on for 121 pages. This tells me that the Court was unsure of itself and felt very strongly that it would have to "justify" its decision.
Now, suppose that the voters of California adopt an amendment to the Constitution stating that "marriage" can only be defined as a certain type of relationship between two people of different gender. Will the Supreme Court have the courage of its convictions and, based on its Equal Protection arguments, strike down all marriage laws. Remember, there are two ways to resolve a situation where one group is being "unfairly" benefited - extend the benefits to all, or strike down the benefits. Presumably, were "marriage" once again defined as it has been for thousands of years, the Supreme Court could strike down all laws that favor marriage based on the logic contained in its 121-page decision.
California has a system of Domestic Partnership registration, in which domestic partners are given the IDENTICAL rights as spouses. Legally, the California Supreme Court decision therefore adds no rights to those who seek a long-term committed relationship sanctioned by the State to someone of their own gender.
What the Supreme Court is allegedly concerned with is what we "label" the relationship. According to the Court, it is simply intolerable that we use two different words to describe committed relationships between folks of the same gender and folks of different genders. The Court hypothesizes that young children might suffer stigma if they are unable to tell classmates that their parents are married.
This is a clever argument, since one of the primary purposes, if not THE primary purpose, of marriage is to create a stable, long-term relationship where the children can be raised by two parents, both of whom make sacrifices for the good of the family, and the children. Same-gendered folks will have children either by adoption, by surrogates, or by relationships with folks of different gender (both before, during, and after the relationship with the person of the same gender). But, statistically speaking, they are far, far less likely to do so than people of opposite genders.
Rather than suggest that children be taught tolerance, or that the children be taught that domestic partnerships give same-gendered parents all the same rights and obligations as spouses, or that same-gendered parents consider these issues prior to having children, or teach their children in their own way how to deal with the subject, the Supreme Court decides to "protect" children by extending the label "marriage" to people to whom it has never been applied before. If we just change the definition of "marriage" the little children will not feel stigmatized.
Unfortunately, a relationship between differently gendered people is different than one between same gendered people, especially with regard to the likelihood of having children. Over the last several eons, society has apparently found that giving special recognition to families composed of a man and a woman is a good way to encourage people to have children, and to properly care for the children.
Whenever one group is favored, this comes with a cost. For example, we may give tax credits to a married couple (or take away tax benefits) to encourage or discourage certain behavior. If the primary reason we are doing so is to encourage people to have children and raise them well, we try to minimize the unnecessary costs without causing too many unforeseen consequences that are detrimental. Not all families will have children, not all will respond in the same way to the tax credit, or tax penalty. We can only afford so much in taxes. So, we give a tax credit, but we don't say that married people pay zero taxes. It would simply be too expensive.
When we state that a spouse can be covered by the other spouse's health, auto or life insurance, this comes with a certain cost - either to the insurance company or to the unmarried in society, who end up sharing the cost.
If we change the mix of people who are likely to have children who receive such benefits, this changes the cost-benefit ratio of the public policy trying to help children by helping married people. It may, or may not, be affordable or desirable to continue offering the benefit. That is, if 80% of all married folks end up having children, we might be able to tolerate the expense created by the other 20%, since this might still be the best way to target children, and encourage people to be married when they have children. But if only 20%, or 50%, or even 60% of married folks have children, we might not be able to tolerate that expense.
In the first scenario, 80 cents of every dollar of benefit helps the target group. In the second scenario only 20, 50 or 60% of every dollar of benefit helps the target group. This is true when married people just stop having children, and it is also true if we redefine marriage to include a large population that is unlikely to have children.
If we want everyone to have group health insurance, instead of a cost we might see the broadening of the definition of marriage to be a good thing, even worth the cost of having to redesign literally billions of forms and sales pitches, and conventions wherein if we know a person is married, we know the gender of the spouse. Advertisers utilize this to target advertising. If the cost-benefit of doing so changes, advertisers may choose not to advertise. This means a lack of benefit for the people who are already married.
There are no doubt millions of conventions, assumptions, business practices, and financial arrangements currently based on the idea that marriage is a relationship between a man and a woman. When and how we change those conventions, assumptions, and practices should be up to the people of California. We may want to try it on for size, fine-tune our system of incentives and disincentives for marriage and child-rearing, change our mind a few times until we can recalibrate marriage.
This is a matter for our body politic and Legislature, where the public policy priorities are pitted against one another in the grand compromise that gives rise to our laws. The Supreme Court is not well-positioned to make these evolving decisions.
Before the Supreme Court ruled, the Legislature had decided that enough people want to enter into marriage-like relationships with someone of the same gender to warrant setting up a system by which they can easily do so - Domestic Partnerships. While granting partners the same rights and obligations as spouses, the law also allowed the Legislature to tinker with public policy. For example, the Domestic Partnership Law did not allow people of opposite gender to become domestic partners unless they were 65 years old or older. The Legislature apparently thought that the trade-offs involved did not warrant extending Domestic Partnerships to all people of opposite genders - perhaps out of fear that more people would seek to gain the benefits of having a spouse without making the types of commitments that we normally associate with marriage, thereby overburdening our system of encouraging marriage. This is what Legislatures are supposed to do.
The majority of the Supreme Court apparently believes that we should think of relationships between people of the opposite gender the same as between people of the same gender. In order to try to force us to do so, it is now in the business of redefining language.
This is a very, very big change that will have enormous cultural, political, social and economic ramifications. My own view is that Judicial Fiat is not the best way to make public policy of this type.
No one can know at this time how many gay married couples will be raising children, whether more people will opt for marriage than opted for Domestic Partnerships, what those marriages will look like as compared to opposite-gendered marriages, and how this will affect our willingness to encourage marriage. We do not know whether this will strengthen society (perhaps leading to more marriages, more stable relationships that encourage the type of long-term sacrifice that benefits society), weaken our ability to promote child-friendly policy at a reasonable cost, or change absolutely nothing.
Whenever I write a brief, I know my client is right whenever I can write a very short brief, right to the point. The Supreme Court rambled on for 121 pages. This tells me that the Court was unsure of itself and felt very strongly that it would have to "justify" its decision.
Now, suppose that the voters of California adopt an amendment to the Constitution stating that "marriage" can only be defined as a certain type of relationship between two people of different gender. Will the Supreme Court have the courage of its convictions and, based on its Equal Protection arguments, strike down all marriage laws. Remember, there are two ways to resolve a situation where one group is being "unfairly" benefited - extend the benefits to all, or strike down the benefits. Presumably, were "marriage" once again defined as it has been for thousands of years, the Supreme Court could strike down all laws that favor marriage based on the logic contained in its 121-page decision.
California has a system of Domestic Partnership registration, in which domestic partners are given the IDENTICAL rights as spouses. Legally, the California Supreme Court decision therefore adds no rights to those who seek a long-term committed relationship sanctioned by the State to someone of their own gender.
What the Supreme Court is allegedly concerned with is what we "label" the relationship. According to the Court, it is simply intolerable that we use two different words to describe committed relationships between folks of the same gender and folks of different genders. The Court hypothesizes that young children might suffer stigma if they are unable to tell classmates that their parents are married.
This is a clever argument, since one of the primary purposes, if not THE primary purpose, of marriage is to create a stable, long-term relationship where the children can be raised by two parents, both of whom make sacrifices for the good of the family, and the children. Same-gendered folks will have children either by adoption, by surrogates, or by relationships with folks of different gender (both before, during, and after the relationship with the person of the same gender). But, statistically speaking, they are far, far less likely to do so than people of opposite genders.
Rather than suggest that children be taught tolerance, or that the children be taught that domestic partnerships give same-gendered parents all the same rights and obligations as spouses, or that same-gendered parents consider these issues prior to having children, or teach their children in their own way how to deal with the subject, the Supreme Court decides to "protect" children by extending the label "marriage" to people to whom it has never been applied before. If we just change the definition of "marriage" the little children will not feel stigmatized.
Unfortunately, a relationship between differently gendered people is different than one between same gendered people, especially with regard to the likelihood of having children. Over the last several eons, society has apparently found that giving special recognition to families composed of a man and a woman is a good way to encourage people to have children, and to properly care for the children.
Whenever one group is favored, this comes with a cost. For example, we may give tax credits to a married couple (or take away tax benefits) to encourage or discourage certain behavior. If the primary reason we are doing so is to encourage people to have children and raise them well, we try to minimize the unnecessary costs without causing too many unforeseen consequences that are detrimental. Not all families will have children, not all will respond in the same way to the tax credit, or tax penalty. We can only afford so much in taxes. So, we give a tax credit, but we don't say that married people pay zero taxes. It would simply be too expensive.
When we state that a spouse can be covered by the other spouse's health, auto or life insurance, this comes with a certain cost - either to the insurance company or to the unmarried in society, who end up sharing the cost.
If we change the mix of people who are likely to have children who receive such benefits, this changes the cost-benefit ratio of the public policy trying to help children by helping married people. It may, or may not, be affordable or desirable to continue offering the benefit. That is, if 80% of all married folks end up having children, we might be able to tolerate the expense created by the other 20%, since this might still be the best way to target children, and encourage people to be married when they have children. But if only 20%, or 50%, or even 60% of married folks have children, we might not be able to tolerate that expense.
In the first scenario, 80 cents of every dollar of benefit helps the target group. In the second scenario only 20, 50 or 60% of every dollar of benefit helps the target group. This is true when married people just stop having children, and it is also true if we redefine marriage to include a large population that is unlikely to have children.
If we want everyone to have group health insurance, instead of a cost we might see the broadening of the definition of marriage to be a good thing, even worth the cost of having to redesign literally billions of forms and sales pitches, and conventions wherein if we know a person is married, we know the gender of the spouse. Advertisers utilize this to target advertising. If the cost-benefit of doing so changes, advertisers may choose not to advertise. This means a lack of benefit for the people who are already married.
There are no doubt millions of conventions, assumptions, business practices, and financial arrangements currently based on the idea that marriage is a relationship between a man and a woman. When and how we change those conventions, assumptions, and practices should be up to the people of California. We may want to try it on for size, fine-tune our system of incentives and disincentives for marriage and child-rearing, change our mind a few times until we can recalibrate marriage.
This is a matter for our body politic and Legislature, where the public policy priorities are pitted against one another in the grand compromise that gives rise to our laws. The Supreme Court is not well-positioned to make these evolving decisions.
Before the Supreme Court ruled, the Legislature had decided that enough people want to enter into marriage-like relationships with someone of the same gender to warrant setting up a system by which they can easily do so - Domestic Partnerships. While granting partners the same rights and obligations as spouses, the law also allowed the Legislature to tinker with public policy. For example, the Domestic Partnership Law did not allow people of opposite gender to become domestic partners unless they were 65 years old or older. The Legislature apparently thought that the trade-offs involved did not warrant extending Domestic Partnerships to all people of opposite genders - perhaps out of fear that more people would seek to gain the benefits of having a spouse without making the types of commitments that we normally associate with marriage, thereby overburdening our system of encouraging marriage. This is what Legislatures are supposed to do.
The majority of the Supreme Court apparently believes that we should think of relationships between people of the opposite gender the same as between people of the same gender. In order to try to force us to do so, it is now in the business of redefining language.
This is a very, very big change that will have enormous cultural, political, social and economic ramifications. My own view is that Judicial Fiat is not the best way to make public policy of this type.
No one can know at this time how many gay married couples will be raising children, whether more people will opt for marriage than opted for Domestic Partnerships, what those marriages will look like as compared to opposite-gendered marriages, and how this will affect our willingness to encourage marriage. We do not know whether this will strengthen society (perhaps leading to more marriages, more stable relationships that encourage the type of long-term sacrifice that benefits society), weaken our ability to promote child-friendly policy at a reasonable cost, or change absolutely nothing.
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